OFFICE FOR ALTERNATIVE

DISPUTE RESOLUTION

STANDARD BASIC ADR

SKILLS TRAINING
M E D IAT I O N
 Mediation Under the KP Law

Section 410. Procedure for Amicable Settlement. -

(b) MEDIATION BY LUPON CHAIRMAN - Upon receipt of the

complaint, the lupon chairman shall within the next working day
summon the respondent(s), with notice to the complainant(s) for
them and their witnesses to appear before him for a mediation of
their conflicting interests. If he fails in his mediation effort within
fifteen (15) days from the first meeting of the parties before him, he
shall forthwith set a date for the constitution of the pangkat in
accordance with the provisions of this Chapter.
What is “Mediation”?

- a voluntary process in which

a mediator, selected by
disputing parties, facilitates
communication and
negotiation, and assists the
parties in reaching a voluntary
agreement (Section 3 [q], RA 9285)
Why mediation?
Conflict Resolution Spectrum
 Characteristics of Mediation
• Voluntary
Private and confidential (Sections 9-11, RA 9285)

Party control over process and outcome

(PARTY AUTONOMY - Section 2, RA 9285)
Interest-based

Enforceable outcome (Section 17, RA 9285; Article 2041, RA 386)

Time saving and cost-effective

Mutually satisfactory; preserves relationship

Mediation Process
 MEDIATION PROCESS

S.P.A.
1. Opening STATEMENT of the Mediator
2. Opening STATEMENT of the Parties
3. Identifying the PROBLEM
4. PRIVATE Caucus
5. Generation of ALTERNATIVES
6. Drafting and Signing of the AGREEMENT
Step 1: Preparing for mediation

• Notifying parties of the schedule;

Ensuring presence of necessary parties

Securing necessary authority

Logistics
 Step 2: Mediator’s Opening Statement
• Introductions
• Process overview
• Purpose of mediation
• Mediator’s role
• Emphasis on party autonomy and
confidentiality
• Ground rules
• Need for separate meetings
(private caucuses)
• Willingness to go ahead
Step 3: Parties’ Opening Statements
• Introductions

• Explanation of respective
positions/views taken

• Areas of disagreement

• Goals/objectives in
mediation
Step 4: Identifying the PROBLEM

• Summarizing the
opening statements
• Problem/issue
identification
 Step 5: Private Caucus

• Only when necessary

• Benefits
• Confidentiality
 Step 6: Alternatives
• Brainstorming/generation of alternatives
• Selection of possible solution(s)
• Improving/building on solution(s)
• Finalizing details of agreement
Step 7: Agreement

Drafting settlement agreement

Review and final revisions
Signing of the agreement
Closing statement:
(1) Acknowledge what they have accomplished;
and (2) Review the next steps in the compliance
with the agreement
 MEDIATION
AS APPLIED IN KP
• Section 410. Procedure for Amicable Settlement

(b) Mediation by lupon chairman - Upon receipt of the

complaint, the lupon chairman shall within the next
working day summon the respondent(s), with
notice to the complainant(s) for them and their
witnesses to appear before him for a mediation of
their conflicting interests. If he fails in his mediation
effort within fifteen (15) days from the first meeting
of the parties before him, he shall forthwith set a
date for the CONSTITUTION OF THE PANGKAT
in accordance with the provisions of this Chapter.
 MEDIATION
AS APPLIED IN KP
• Section 404. Pangkat ng Tagapagkasundo. -

(a) There shall be constituted for each dispute

brought before the lupon a CONCILIATION
PANEL to be known as the pangkat ng
tagapagkasundo, hereinafter referred to as
the pangkat, consisting of three (3) members
who shall be chosen by the parties to the
dispute from the list of members of the lupon.
 MEDIATION
AS APPLIED IN KP

• INTEREST-based theory
• Similarities between Conciliation and
Mediation
• Applicability of Skills in Mediation in
Conciliation
Special Skills of the Mediator
 Building Trust
 TRUST requires acceptance by the parties that the
Mediator is:
 Competent to facilitate the discussion effectively;
 Skillful in managing the process; and
 Able to communicate, maintain confidentiality,
question, build relationships, listen, analyze, identify
issues and generate options for mutual gain.
 During mediation, TRUST means the parties felt that the
Mediator is the right person to facilitate the discussion in
terms of competency, experience, expertise, standing and
personality.
IMPORTANCE of
BUILDING TRUST

• Parties are:
 More likely to share important
information;
 Less defensive;
 Able to state their needs;
 More willing to give and take in
negotiations;
 More accepting of the mediato
r’s actions; and
 Better able to bridge the gaps
between them.
HOW TO BUILD
TRUST

• Create a relaxed environment

• Make the parties understand the
process and your role as mediator
• Establish and maintain credibility
• Treat each party equally and with
respect
 Changing Positions to Interests
POSITION INTEREST
What people say they want or The reason(s) why people
need want things
Identifies a person’s favoured Tells us what needs to be
situation addressed in order to reach
an agreement
May not address the needs Can be addressed in more
and/or concerns of others than one way

Mediator’s Role: To facilitate communication so that parties

are able to share their mutual interests.
LISTEN FOR CUES ABOUT
PARTIES’ INTERESTS
• What matters to each person
• What they most hope to resolve
• The effect the problem has
• What issues are particularly hot
• Any common underlying themes
QUESTIONS TO
GET AT What is important to you?
INTERESTSWhat bothers you about the
situation?
How does ____ affect you?
It sounds like ____ matters to you a
lot.
Active Listening
• Quiet your mind and focus.
• Withhold judgment.
HOW TO ACTIVELY LISTEN

• Look at the speaker.

• Show that you are interested in what
he/she is saying.
• Lean slightly toward the speaker. Keep an
open, relaxed posture.
• Try to listen for what is not being said.
Observe HOW things are being said ---
emotions and attitudes behind the words
may be more important than talk.
 Asking Questions
• To show that you’re listening
(especially at the early, trust-building stage)

• To gather and organize

information (particularly at the problem-
solving stage)

• To express in question form

what otherwise would be an
academic statement --- to Question the intent
of your question.
test reality
POINTERS ON
ASKING
QUESTIONS

• Generally, questions should be open-

ended.
Open-ended v. close-ended questions

• Avoid potentially problematic questions.

- Problem and past-focused questions
“What contributed to things getting this bad?”

- Rhetorical or pseudo questions

“Don’t you think forgetting the past is more useful?”

- Why questions
“Why didn’t you ask permission first?”

• Ask purposeful questions.

Giving Feedback
• To confirm that you’ve been listening
• To check that your perception of what you
think you heard/observed is right.
 Reframing, Reflecting, Restating

• Is restating what a
party has said to
capture the essence, Examples:
remove negative “hysterical” to
overtones and move “crying”
the process forward. "liar" to “a person
who ‘disagreed’ or
• A way to translate a ‘sees differently’”
positional statement
into a statement of
interests or needs.
Summarizing
• Give an outline of what has been said.
• Highlight the important points of the narrative.
• Omit extraneous information.
Purposes:
To gather and pull together
important facts
To condense the feeling and
content of the speaker
To establish basis for further
discussion
To review progress
 Observing Nonverbal Signs and Body Language

• Body language of
parties when they
entered the room and
how they respond to
each other
• Tone of voice
• Predominant’ emotion
portrayed in a party’s
posture and in their
gestures at key stages in
the mediation
 Managing Impasse
• Convening
- involves effective convening by the mediator of all the concerned
parties, asking a lot of questions and being unafraid to push to better
understand all of the dynamics of the negotiation

• Preparation
Each person needs to know enough about the case so that
they can analyze settlement proposals and make informed decisions.

• Communication
Impasse results when there is failure at communication stage
--- the mediator may not have discovered or addressed a party's
underlying interests.
Managing Impasse
• Negotiation
Most of the rest of the reasons for impasse occur as a result of
the negotiation process. The primary reason for impasse here is the
mediator buying into the bluff.

• Agreement
One reason to be sure to write a settlement agreement at the
end of the mediation, even over the parties’ predictable resistance
after hours of difficult negotiation, is because the exercise of writing
the agreement forces the parties and/or their attorneys to focus on the
details of the agreement.
 Special Skills of a Mediator
• Building the trust of the parties
• Changing positions to interests
• Active listening
• Asking appropriate questions
• Giving feedback
• Reframing, reflecting, restating
• Summarizing
• Observing non-verbal signs and body language
• Managing impasse